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Cost vs. benefit of Pension complaints

The Pensions Ombudsman has some key benefits as a venue for employees with pension grievances. Jurisdiction revolves around ‘maladministration’ which can be quite broad and for employees, costs aren’t a real issue.

However given the potential costs raised by these complaints employers and pension schemes often run up large legal and actuarial costs defending Ombudsman claims.

This can lead to some “challenging” cost to benefit analyses for Ombudsman complaints, particularly where there are arguments around payments for distress and inconvenience caused by proven maladministration.

An example being the recent High Court case of Smith v. Sheffield Teaching Hospitals NHS Foundation Trust [2017] All ER (D) 166 (Oct) where an employee who worked for the NHS lost the right to an unreduced pension due to bad information.

The Ombudsman and the Court both decided that she couldn’t have the unreduced pension, but that an award for inconvenience and distress was appropriate. The Ombudsman decided that she should get £500. The employee wanted £36k based on the Ogden tables. The Court decided it would award £2750.

The question is, how much time and effort did the employer end up spending on defending the claim? Given the outcome, it would have probably been better to carefully check the pensions communications in the first place!

Cost vs. benefit of Pension complaints

#MeToo

In the light of news-breaking allegations against Harvey Weinstein (see the Nov 2 blog post) more than 30,000 women joined the "#MeToo" campaign to raise awareness about sexual harassment in the workplace. Originally started by the actress Alyssa Milano, this campaign was joined by a large number of women from around the world, including Anna Paquin, Debra Messing, Gabrielle Union, Lady Gaga and others. Since the hashtag appeared on Twitter, it was used 850,000 times within the first 48 hours.
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#MeToo

When can a mobility clause be relied upon?

Find out here in Emma Carter’s article for People Management:

Mobility clauses

When can a mobility clause be relied upon?

So, where’s “mutual agreement” on this pension form?

Pensions and Employment speak different languages and as an employer it's important to have a team working for you that understands both. A recent example arose in the Pensions Ombudsman case of Mr. O (PO-7782).
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So, where’s “mutual agreement” on this pension form?

Suspension for alleged misconduct may be a breach of contract

In the recent case of Agoreyo v. London Borough of Lambeth [2017] EWHC 2019 (QB), the High Court has held that suspension as a "knee-jerk" reaction to an allegation of misconduct may in itself be sufficient to breach the implied contractual term of trust and confidence.
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Suspension for alleged misconduct may be a breach of contract

We need a holiday from the holiday pay cases!

In the latest in a number of cases dealing with the calculation of holiday pay, the Employment Appeal Tribunal ("EAT") has held, in the case of Dudley Metropolitan Borough Council –v- Willetts, that pay for voluntary overtime normally worked constitutes "normal remuneration" for the purposes of calculating holiday pay provided for in the Working Time Directive (20 days).
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We need a holiday from the holiday pay cases!

SOSR – A low threshold for a fair dismissal?

Of the five fair reasons for dismissal, ‘some other substantial reason’ (SOSR) is often viewed as a ‘catch all’ justification for dismissal. It does not give an employer freedom to dismiss for an irrelevant or trivial reason. However, the threshold to meet in order to be able to rely on an SOSR dismissal appears not to be prohibitively high in light of the recent case of Ssekisonge v Barts Health NHS Trust UKEAT/0133/16/LA.
Ms Ssekisonge was a registered nurse who worked for a number of NHS Trusts. She came to the UK and obtained indefinite leave to remain and then British citizenship. Her citizenship was revoked when the Home Office had concerns regarding her identity. Ms Ssekisonge did, however, retain her leave to remain. Following a disciplinary process, the NHS dismissed her, again due to concerns over her identity.
The Employment Tribunal found the principal reason for the dismissal was that the NHS could not determine Ms Ssekisonge’s identity and the risk that this posed was sufficient to justify her dismissal for SOSR. Ms Ssekisonge appealed the decision but the Employment Appeal Tribunal (EAT) upheld the first instance decision. Certainty over an employee’s identity was essential for a nursing role. The EAT rejected an argument that employers should go further than they might otherwise do when dismissing for SOSR where there is no fault on the part of the employee.
It is important to remember each case is fact sensitive. In particular the claimant in this case was waiting for the outcome of the Home Office investigation in relation to her identity and the NHS Trust was not expected to investigate further in the meantime. Employers should also be aware of their duties to check a job applicant’s ‘right to work’ documents.

SOSR – A low threshold for a fair dismissal?

Employment Status Checker

HMRC has published an employment status checker so that employers can check whether the IR35 legislation on intermediaries and ‘disguised employees’ will apply to a particular engagement. The tool determines if, on the basis of the facts given, a person is employed or self-employed for tax or NIC purposes.

The IR35 legislation only applies if the worker would be an employee of the entity if they worked directly for it, not an intermediary. The tool can be used to check current or future engagements in the private or public sector.

HMRC affirms that they will stand by the result unless it is subsequently shown that the information provided is inaccurate or contrived to achieve a particular outcome. Currently the tool allows you to obtain an outcome of non-applicability of IR35 legislation if you include a right of substitution in your employment arrangement – which leads to the question of whether always including a right of substitution would constitute a contrived outcome. Due to these mechanical issues, there will be many who question the usefulness of a tool that is so easily manipulated, and who will query the extent to which the tool actually reflects the approach of HMRC for determining employees’ status for tax purposes.

Employment Status Checker

Online employment tribunal judgments

The “Employment tribunal decisions” website has now been launched and there are already three pages of decisions that have been uploaded (currently decisions from 2015 onwards). The launch of this website will make getting hold of tribunal decisions much easier. However, the public nature of the decisions will no doubt be a factor for both employers and employees to consider before going to tribunal, as any negative findings will now be widely available and could damage reputations.

Click here to go to the website.

Online employment tribunal judgments

Working up a sweat?

A recent study by The Lancet, the independent medical journal, has found that physical inactivity in the workplace can pose dangers to a workforce. To combat this, the study suggests that one hour of moderate exercise each day is enough to offset the side effects of a typical sedentary working day. Many (typically larger) employers have already taken the decision to promote exercise and healthy living in the workplace by offering free or discounted gym memberships and setting up sports clubs. A recent trend has also been to introduce customised desks with treadmill or pedalling devices to keep employees active and encouraging employees to conduct “walking meetings”. It is reported that Google has even created a new 90 m indoor running track at its London headquarters.

What’s sure is that employers are becoming more alive to employees’ health and wellbeing in the workplace and this looks set to continue in the future. We consider that it is in employers’ interests to promote active lifestyles, as a healthier workforce should mean fewer issues for employers in managing sickness absence. The non-profit organisation ukactive has even called for the government to consider tax breaks for companies offering these perks to employees.

Working up a sweat?